On the Limits of Challenging Section 5

The Supreme Court may be on the verge of striking down Section 5 of the Voting Rights Act, which mandates federal approval, or “pre-clearance”, of any changes to election procedures in states under the Act’s jurisdiction (mostly Southern, but some scattered northern jurisdictions, primarily in New York). It could be a mixed triumph for conservatives—a blow against a regionally discriminatory rule of law that limits Virginia and South Carolina from passing statutes that are perfectly legal in Kansas and Indiana—but a victory that will only fuel the impression that the political right is bent on suppressing minority voters.

Conservative legal activists would have been better advised to concentrate on doing away with or revamping the other elements of the Act that actually do much more damage to the proposition of a color-blind politics. Ending Section 5 would be explosive, and still won’t alter the Act’s evolution from an instrument of black voter participation in the South to a prescription for rigged districts that look exactly like spoils and quotas.

The VRA is a textbook of generally-worded terms that subsequent courts and career bureaucrats have reshaped. It’s entirely appropriate command that covered states refrain from passing election laws that discriminate against their minority citizens has been swollen into a requirement that minorities be aggregated into legislative and congressional districts that are overwhelmingly dominated by their race. Even a slight rollback of the percentages, say, from 65 percent to 58 percent is prohibited on the theory that such a contraction “dilutes” the minority vote.

The effect is that, in the Deep South, black voters influence politics solely inside their centers of gerrymandered influence: the numbers that remain elsewhere are not substantial enough to create authentic swing districts where Republicans might have to seek black support to win. In the same vein, the nature of nearly 70 percent black districts is that their elected officials are just as untethered from the need to build coalitions with conservative white voters.

Not surprisingly, black Democrats and southern Republicans have not complained. The South that results is the single most racially polarized electorate in the country and its African-American politicians are hemmed into a race-conscious liberalism that marginalizes them statewide. In addition, more conservative black Democrats and black Republicans are rendered unelectable in minority districts that leave no room for a non-liberal brand of candidate.

Conservatives ought to recoil from an anti-discrimination principle shifting into a mini political apartheid. Rather than condone a de facto spoils system, they should be trying to undo an arrangement that is more bent on electing a certain kind of black politician than on empowering blacks to engage the democratic process.

I am not sure that Section 5 being over turned will incite the damage you mention in your first paragraph.

I think the people who will view this as evidence the political is trying to suppress minority voters already believe the political right is trying to suppress minority votes. Does it really matter if they have 99 made up reasons or 100 made up reasons?

This is a failure in our thinking on the right and we fall into the trap of “We can’t do/support/repeal ___________ because then group _______ will never support us and because of a demographic shift/tsunami we will be forever damned to a minority in government.”

The group you fill in the blank with in the previous paragraph almost always already thinks the political right is disenfranchising or otherwise suppressing them.

Conservative legal activists would have been better advised to concentrate on doing away with or revamping the other elements of the Act that actually do much more damage to the proposition of a color-blind politics.

Just recently, the editors of the Seattle Times came out in favor of creating “majority minority” voting districts (different minority, same idea) in the Yakima Valley, since by their lights, not enough Latinos are running for office or getting elected.

Do you think that eliminating the requirement for minority-majority districts would eliminate them in practice? If black Democrats and Southern Republicans are both OK with the practice, even if it were no longer enshrined as law, it still might be the desire of both sides to create these districts.

I certainly support changing the law, but I wonder if changing the law alone will change the practice.